Summary Judgment for Defense Reversed in Dog Bite Case

In the case of Franciscus v. Sevdik, No. 1699 WDA 2014, 2016 Pa. Super. 52 (Pa. Super. Feb. 29, 2016 Bowes, J.), the Pennsylvania Superior Court ruled that the trial court erred in entering summary judgment in favor of a Defendant pet-sitter in a dog bite case.  

According to the Opinion, the Defendant pet-sitting company was walking an owner’s pitbull when the dog bit the Plaintiff’s daughter, who had asked to pet the dog.   The trial court had granted summary judgment in favor of the pet-sitting Defendants after finding that there was no evidence from which it could be inferred that the company had any knowledge of the dog’s dangerous propensities.  

The Superior Court disagreed and found that there was sufficient evidence to reasonable infer that the pet-sitting Defendants were aware of the dog’s dangerous propensities.   In so ruling, the Superior Court initially noted the law that a dangerous propensities in a dog was not limited to viciousness but, more generally, to a propensity for the dog to injure a person, whether the dog’s attack was motivated by viciousness or playfulness.  

In this matter, the court noted that the owner of the dog had filled out a form for the pet-sitting Defendant in which the owner advised that the dog be walked with a muzzle and not be walked down routes where the dog would encounter other dogs or children.   The dog did not have a muzzle on at the time of the incident and the pet-sitting company allowed the child to approach the dog at the time of the incident.

As such, the entry of summary judgment by the trial court was reversed.  

The court in Franciscus went on to note that, given that it had already resolved the issue before it, it did not need to reach the issue of whether or the trial court erred in refusing to take judicial notice of the dangerous propensities of pitbulls in general.   The Superior Court did note that Pennsylvania law did not distinguish between breeds of dog as having any particular dangerous propensities per se.   The court noted that, under Pennsylvania law, the breed of dog involved typically only comes into play after it is established that the dog at issue had already exhibited dangerous behavior.  

 The Pennsylvania Superior Court also noted that Pennsylvania courts had specifically declined to adopt the proposition of the Restatement of Torts that there be strict liability for an owner of a dog already determined to be dangerous based upon a previous incident.  

 

Anyone wishing to review this decision may click this Link.

 

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2016).

 

 

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Link to Judge Nealon's Decision in Brink v. Malik Corrected

The Link to yesterday's reference to Lackawanna County Judge Terrence R. Nealon's discovery decision in the case of Brink v. Mallik has been corrected.  Here is the corrected LINK for your easy reference.

I apologize for any confusion.

Thank you.

GO NOVA!

General Rules of Discovery Reviewed by Judge Nealon of Lackawanna County

In his recent March 7, 2016 discovery decision in the case of Brink v. Mallik, No. 2013-CV-1314 (C.P. Lacka. Co. March 7, 2016 Nealon, J.), Judge Terrence R. Nealon addressed discovery issues in a wrongful death action alleging psychiatric malpractice that allegedly resulted in the suicide of the Plaintiff’s decedent while he was a patient in the Behavioral Health Unit at a hospital.  

Judge Terrence R. Nealon
Lackawanna County
 

Although this case involves a medical malpractice action, the discovery rulings issued by Judge Nealon in this detailed Opinion could apply generally in any civil litigation matter.  

At issue in this case was the discoverability of two (2) letters authored by an employee of the Defendant hospital and a separate “Notice of Determination” issued by the Pennsylvania Department of Labor and Industry, office of Unemployment Compensation Benefits with respect to that employee.   This matter came before Judge Nealon on an appeal from a decision by the discovery master (Henry Burke, Esquire) in the Lackawanna County Court of Common Pleas.  

In his decision, Judge Nealon provided a detailed analysis of the general rules for discovery applicable to any civil litigation matter.  

The issue arose when the Plaintiff filed a Motion to Compel personnel files of employees at Marian Community Hospital.  Following an in camera review of the pertinent personnel files, the discovery master concluded that certain materials were discoverable and other documents were “protected by the peer review privilege.”  

Among the record that the discovery master found discoverable included an employee’s letter of resignation from employment and an additional letter from the employee, as well as the “Notice of Determination” from Department of Labor and Industry.   According the Opinion, the letters authored by the employee related, in  part, to her difficulties with working with a particular per diem co-worker in the Behavior Health Unit along with other issues.   The Notice of Determination document pertained to that employee’s recovery of benefits under the unemployment compensation law.  

The hospital contended that these documents were not relevant, and therefore, no discoverable to the underlying issues presented in the case.   More specifically, the hospital maintained that the documents at issue did not suggest in any way that the employee’s health impeded her ability to perform her job.   The hospital argued that the request for these documents were simply a fishing expedition aimed at obtaining confidential information from a former hospital employee in the hopes that the documents may contain information useful to the Plaintiff’s case.  

In response, Plaintiff noted the involvement of the employee with the initial intake and assessment to the decedent shortly before the subject incident.   The Plaintiff also noted that, immediately following the incident, the hospital was subjected to an unannounced Complaint investigation conducted by the Pennsylvania Department of Health and that the employee at issue resigned within a month of that investigation.   In the alternative, the Plaintiff also asserted that the records may reveal that the employee was suffering from a physical or mental illness that impeded her ability to provide proper care and that the documents may also disclose what knowledge the hospital had regarding that alleged condition.  

Judge Nealon reviewed the issues under the general rules of civil procedure pertaining to discovery found at 4003.1 et. seq.   The court noted the important principle that the relevant standard applicable to “[t]he relevant standard applicable to discovery is broader and more flexible than the relevant standard used at trial for the admission of evidence.”   See Op. at 7 [citations omitted].

Judge Nealon also noted that, under Pa. R.C.P. 4012(a), the trial court was granted broad authority to direct the terms and conditions of allowable discovery.   Judge Nealon utilized this rule to order the parties to conduct additional discovery with respect to issues related to the documents in question and to come back before the court at a later time with that discovery to assist the court in rendering its overall decision as to whether or these documents would prove to be discoverable under the Pennsylvania Rules of Civil Procedure.    

A copy of this Opinion can be viewed at this LINK.
 

Claims Reps Mental Impressions, Conclusions and Opinions Protected from Discovery in Dauphin County Post-Koken Decision

 

The Dauphin County Court of Common Pleas recently handed down a discovery decision in the Post-Koken case of Castellano v. Erie Insurance Exchange, No. 2014-CV-9647 (C.P. Dauph. Co. March 23, 2016, Bratton,  J.).

In this case, the Plaintiff sought discovery of unredacted claim notes including the adjuster’s mental impressions, conclusions, evaluations, opinions and strategy.  The Plaintiff argued that she was entitled to know how the insurance carrier “evaluated” her UIM claim.

After reviewing briefs from both parties, hearing argument on the issue and studying the proposed redactions by Erie Insurance in an in camera review, Judge Bruce Bratton issued an Order without Opinion found that the redactions were appropriate and prevented the plaintiff from discovering any additional unredacted claim notes.

Anyone wishing to secure a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney John Statler of the Lemoyne, PA law office of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.

Deposition of a UIM Claims Rep in a Luzerne County Post-Koken Case Allowed

The Luzerne County Court of Common Pleas
 

In his recent March 9, 2016 Order without opinion in the case of Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.), Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case.  The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices for bringing this decision to my attention.

Commentary:   This decision of Judge Burke is notable in that Judge Burke had twice previously denied Motions to Compel Depositions of Claims Representatives in context of post-Koken cases by Order only.   See e.g. Garret v. Griffin, No. 17274-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.); Krzynefski v. Bish, No. 16643-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.).  

Also, there are other Luzerne County Court of Common Pleas decisions allowing for claims representative depositions in post-Koken matters, including a decision by Judge William H. Amesbury in the case of Paulewicz v. State Farm, No. 10655-Civil-2009 (C.P. Luz. Co. Feb. 1, 2010 Amesbury, J.), as well as the decision of Boyle v. Progressive, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.).